794 F.3d 232
2d Cir.2015Background
- Maurice Keshner brought a qui tam False Claims Act suit (federal and state claims) against Nursing Personnel Home Care; the government joined a joint investigation.
- The parties settled in 2009: Nursing Personnel paid the government; the government agreed to pay Keshner an 18% share and preserved Keshner’s claim for attorneys’ fees under 31 U.S.C. § 3730(d)(1).
- Nursing Personnel refused to pay Keshner’s requested fees; Keshner moved in district court for reasonable attorneys’ fees and costs.
- In district court Nursing Personnel challenged only Keshner’s entitlement to fees (arguing non‑prevailing party/collusion), not specific time entries or the amount; the court awarded $185,962.12 in fees.
- On appeal Nursing Personnel raised for the first time an objection that many billed hours were for state‑court work (not the federal case) and thus should have been excluded; the Second Circuit treated that argument as unpreserved.
- The Second Circuit affirmed the fee award, holding Nursing Personnel waived the new challenge and remanded only to permit Keshner to seek appellate attorneys’ fees for defending the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of newly raised objections on appeal to specific fee entries | Keshner argued he met the burden to document fees and entitlement; opposing party must timely object below | Nursing Personnel argued it could challenge specific time entries on appeal because district court should have scrutinized reasonableness and distinguish federal/state work | Court held Nursing Personnel waived the objection by not raising it below; appellate consideration declined absent manifest injustice or pure legal question |
| Burden of proof on fee petitions | Keshner: fee applicant must document hours and rates (met that burden) | Nursing Personnel: because Keshner had burden, it was not required to object to specific entries | Court: applicant bears documentation burden, but that does not shift to objecting party an obligation to anticipate and raise every possible challenge below |
| Whether district court’s "reasonable" finding means it passed on unraised objections | Keshner: district court’s reasonableness finding does not imply it considered all hypothetical objections | Nursing Personnel: implicit ruling passed on duplicative/state‑work objections | Court: cannot presume district court passed on unraised, specific objections; waiver remains dispositive |
| Independent duty of district court to scrutinize fee petitions | Keshner: independent duty exists only in limited contexts (e.g., class funds, bankruptcy) | Nursing Personnel: statute’s "reasonable attorneys’ fees" language imposes independent duty to detect errors even if not raised | Court: no broad independent duty in False Claims Act context to self‑police all possible objections; responsibility remains with fee target to protect its interests |
Key Cases Cited
- Greene v. United States, 13 F.3d 577 (2d Cir. 1994) (appellate courts ordinarily do not consider issues raised first on appeal)
- Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132 (2d Cir. 2008) (reasonableness of attorney’s fees is essentially a factual determination)
- In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129 (2d Cir. 2008) (courts normally decline to entertain new arguments on appeal when they were available below)
- Fox v. Vice, 563 U.S. 826 (U.S. 2011) (fee applicant must submit documentation establishing entitlement and hours)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (fee applicant bears burden of documenting hours and rates)
- Quaratino v. Tiffany & Co., 166 F.3d 422 (2d Cir. 1999) (successful litigants are entitled to fees for defending appeals; district court determines amount on remand)
- United States ex rel. Taxpayers Against Fraud v. Gen. Elec. Co., 41 F.3d 1032 (6th Cir. 1994) (district court may adjust agreed fee amounts for unreasonableness; cited by defendant but deemed inapposite by the Second Circuit)